UBC Theses and Dissertations

Interwoven legal traditions. The extent to which state based decision makers are engaging with indigenous…
Johnston, Natalie
2014

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Interwoven legal traditions. The extent to which state based decision makers are engaging with indigenous legal traditions and the extent to which this is feasible : a celebration of an exceptional outcome

In recognition of Canada being a legally pluralist state, there is ample impetus from multiple players within the Canadian legal landscape for Indigenous legal traditions to be recognized, respected and considered as sources of legitimate legal authority. The need to be attentive to Aboriginal interests is becoming increasingly important in the context of government decision making regulating natural resources extraction that the constitutional duty to consult governs. However, state based decision makers must be attentive to the Indigenous legal traditions that comprise the legal systems that existed upon colonial settlement and which remain alive today.
Taking the recent Caribou cases as a case study, I analyse the extent to which Dunne Za law was recognised and respected in successive administrative and judicial decision making. Several Dunne Za legal traditions were interwoven throughout the petitioners’ submissions which arguably incited the Caribou cases. Chief of these laws is the traditional seasonal round. I interpret substantive and procedural components to decision making pursuant to this land management regime for maintaining balance and order. Throughout the analysis I highlight cultural, legal and operational constraints to the ability of decision makers to consider Indigenous legal traditions. Chief of these legal impediments is the reasonableness standard of review pursuant to which decisions as to the adequacy of consultation are assessed.
The Caribou cases exhibit varying degrees of respect for Dunne Za law. The Chief Justice’s inclusive balancing approach, which considers the legal traditions that were at play as legitimate law, contrasts that of the statutory decision maker and other appellate judge, which, inter alia, devalued the petitioners’ hunting right to an interest capable of being trumped by competing economic interests. On several levels, the Caribou cases are a positive result that ought to be celebrated. However, this case study is an exception among many battles over the duty to consult that are not won. While Indigenous law has a presence in state based decision making, considerable progress must occur in the extent of respect for and consideration of Indigenous legal traditions, before parity of influence exists with common law legal traditions in state based decision-making